The global intellectual property landscape witnessed a notable milestone on Friday 24 May 2024, with the conclusion of the 世界知识产权组织 (WIPO) Treaty on intellectual property, genetic resources and associated traditional knowledge. Negotiated between the 193 member states of WIPO, the treaty marks a historic achievement in international cooperation and innovation governance. Under the auspices of WIPO, the treaty mandates disclosure requirements for patent applicants, aiming to enhance transparency and accountability in the use of genetic resources and/or traditional knowledge.

The key requirements of the treaty include disclosure of origin, whereby patent applicants must disclose the origin of genetic resources used in their inventions. This requirement aims to prevent patents from being granted erroneously and ensures proper tracing of genetic resources. Applicants must also disclose any associated traditional knowledge linked to genetic resources. This provision acknowledges the contributions of indigenous peoples and local communities to innovation and intellectual property.

While the WIPO treaty represents a significant step forward in addressing the transparency and accountability in relation to the use of genetic resources and traditional knowledge, some critics argue that it falls short in addressing the issue of compensation for indigenous communities. Despite mandating disclosure requirements for patent applicants, the treaty does not include provisions for ensuring equitable benefit-sharing with indigenous peoples and local communities, which have historically contributed to the preservation and development of genetic resources. This omission raises concerns about the continued exploitation of indigenous knowledge without appropriate acknowledgment or compensation, highlighting the need for further dialogue and action to address the rights and interests of marginalised communities in the intellectual property landscape.

South Africa’s implementation of the National Environmental Management: Biodiversity Act No 10 of 2004 (NEMBA) and Biodiversity Access and Benefit-Sharing (BABS) regulations of 2008 is cited as an example of proactive measures taken almost 20 years prior to the WIPO treaty. It is argued that South Africa’s proactive approach may complicate its position in international negotiations, potentially conflicting with the international standards set by the WIPO treaty. However, the focus remains on the transformative potential of the treaty itself, which transcends geopolitical divides and fosters a more inclusive and equitable approach to innovation governance.

As countries navigate the complexities of implementing the WIPO treaty alongside existing legislation, the need for strategic alignment and collaboration are likely to become increasingly apparent. Balancing the imperative of protecting biodiversity and indigenous knowledge with the demands of the global intellectual property regime requires careful negotiation and adaptability in the face of evolving legal landscapes. The WIPO treaty stands as a testament to international cooperation and collective efforts to address complex challenges at the intersection of intellectual property and biodiversity conservation.

The next steps in the process involve ratification and implementation of the WIPO treaty by member states. This will require coordination among governments, stakeholders and indigenous communities to ensure effective enforcement and compliance with the treaty’s provisions. Additionally, ongoing dialogue and engagement will be essential to address any remaining gaps and challenges in promoting equitable benefit-sharing and protecting traditional knowledge in the context of intellectual property rights. The treaty will become international law after it has been ratified by 15 member states, signifying a critical juncture in global intellectual property governance.